If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LYNDA DANHOFF and DANIEL DANHOFF, UNPUBLISHED
May 6, 2021
Plaintiffs-Appellants,
v No. 352648
OAKLAND CIRCUIT COURT
DANIEL K. FAHIM, M.D. and MICHIGAN HEAD LC No. 2018-166129-NH
& SPINE INSTITUTE,
Defendants-Appellees,
and
DANIEL K. FAHIM, M.D., PC, KENNETH P
D’ANDREA, D.O., and WILIAM BEAUMONT
HOSPITAL, doing business as BEAUMONT
HOSPITAL-ROYAL OAK,
Defendants.
Before: TUKEL, P.J., and SERVITTO and RICK, JJ.
Servitto, J. (concurring)
I concur in the result, but do so only because under the doctrine of stare decisis, I am bound
to follow the decision and reasoning set forth in Elher v Misra, 499 Mich 11; 878 NW2d 790
(2016). Were I not so bound, I would find that the factors set forth in Daubert v Merrell Dow
Pharmaceuticals, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993) do not necessarily
apply to an expert's standard of care opinions, but rather only to causation issues. This case
presents the precise reason why: where the perforation of the colon during the surgery at issue is
admittedly exceedingly rare, it is not unsurprising that there are no articles or medical authority
addressing whether the perforation of the colon during that surgery is a breach of the standard of
care. That leaves plaintiffs, such as the one here, in the impossible position of attempting to prove
that their injuries occurred due to substandard care when no published articles on the specifically
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incurred injury are available to either prove or disprove that the applicable standard of care was
breached.
/s/ Deborah A. Servitto
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